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Purchase and Sale Agreement Buyer's Initials: \byer_init\ / \co_byer_init\ Page 1 ©2017 Altisource Portfolio Solutions S.A. All rights reserved.
Important Conditions of Your Purchase
The attached Purchase and Sale Agreement (“Agreement”) contains the material terms regarding your purchase of the
property identified in that document (the “Property”). Until the Seller receives the Agreement executed by you, as the
Buyer, and signs and returns a copy of the fully executed Agreement to you, there is no binding contract between the
parties. As a result, the Seller will continue to market the Property, negotiate and accept other offers on the Property.
Furthermore, at all times, even after the Agreement is signed, the Seller reserves the right to continue to market the
Property and accept backup offers on the Property.
No changes or negotiation to the Agreement will be accepted. The Agreement must be fully signed and initialed by
you and signed by your broker (if any), and returned to the Seller within forty-eight (48) hours of receipt. If the
Agreement is delivered to you via DocuSign and you are signing it using the DocuSign functionality, then the
executed documents will be transmitted to the Seller automatically after you sign and submit the documents. If the
Agreement is delivered to you outside of DocuSign and does not allow for electronic signatures, then you are solely
responsible for ensuring that the initialed and signed Agreement is returned within the required timeframe to the
appropriate persons in accordance with the instructions you received.
If the Seller accepts the terms of the Agreement, then the Seller will countersign the Agreement. Thereafter, you will
receive a copy of the fully executed document. Once you receive the fully executed Agreement, as per the terms of
the Agreement, you must deliver the Earnest Money funds (wire or certified check) to the Closing Agent within forty-
eight (48) hours. Because the Closing Agent may not be aware of this transaction, please send a copy of the fully
executed Agreement along with the Earnest Money Funds. Additionally, please be certain that the Earnest Money
funds reference the Sellers’s name and the Property address.
PLEASE NOTE: Seller reserves the right to terminate the Agreement and pursue all remedies available if the
Earnest Money is not received by the Closing Agent by the deadline.
Sample
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Agreement Overview
This summary is provided as a courtesy. You are solely responsible for reading and understanding the Agreement
in its entirety.
Article 1 – Buyer Acknowledgments. Certain understandings and obligations of you, as the Buyer, concerning the
transaction, including, but not limited to, your choices regarding selection of the title provider and closing agent, and
your election regarding whether to finance the Technology Fee and Buyer’s Premium as part of the purchase price of
the Property
Article 2 – Significant Transaction Terms and Definitions. A summary of the important details of the transaction,
including, but not limited to, the names of the parties involved, the purchase price of the Property, a description of
some of the fees associated with the transaction, and important dates
Article 3 – Sale of Property. A formal acknowledgement regarding the purchase and sale of the Property
Article 4 – Purchase Price. Among other things, contains details regarding the purchase price and the earnest money
Article 5 – Deposit. Among other things, defines what the Deposit consists of, how it is used as part of the transaction
Article 6 – Mortgage Commitment Contingency. Alternative terms which apply depending upon whether the
transaction includes a mortgage commitment contingency
Article 7 – Inspection Contingency. Alternative terms which apply depending upon whether the transaction includes
an inspection contingency
Article 8 – Title. Terms related to transfer of title, title insurance, title defects, Buyer’s obligations relating to title
matters, and Seller’s very limited obligations related to title
Article 9 – Closing. Details regarding the Closing, including, but not limited to, conditions to closing, and required
deliveries at closing
Article 10 – Closing Costs and Adjustments. Allocation of closing costs, responsibility of the parties for certain
expenses, taxes and fees
Article 11 – Parties in Possession of the Property. Terms regarding potential occupants in the Property
Article 12 – Default and Remedies. Each party’s rights and remedies in the event of a default by the other party,
including, but not limited to limitations on the Buyer’s remedies, the Seller’s rights to terminate or cancel the
Agreement, and limitations on the Seller’s total liability under the Agreement
Article 13 – Disclosures. Important disclosures regarding the Property, including that the Property is sold “AS IS”
and without warranty or disclosure of any conditions of the Property except where required by applicable law
Article 14 – Indemnification. The Buyer’s indemnification obligations
Article 15 – Additional Real Estate Provisions. Details regarding risk of loss, exclusion of personal property from the
transaction, eminent domain, keys and insurance policies
Article 16 – General Contract Provisions.
Article 17 – Escrow Agreement. Agreement by the Closing Agent to handle the funds in connection with the
transaction Sample
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this “Agreement”), is made by and between Seller and Buyer, both as defined in
Section 2 below (together, the “Parties” and each individually, a “Party”), and is dated the date this Agreement is
executed by the Seller, as indicated below on Seller’s signature block (the “Effective Date”).
In consideration of the mutual benefits accruing to the Parties hereto and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as follows:
1 BUYER ACKNOWLEDGMENTS.
Buyer acknowledges and agrees to the following:
1.1. Not Binding Until Signed by Seller. This Agreement has been prepared in response to Buyer's expressed
interest to purchase the Property (as defined in Section 2.7), upon the terms and conditions contained herein.
The submission of this Agreement to Buyer does not create a binding obligation on the part of Seller. This
Agreement does not constitute an offer by Seller to sell the Property to Buyer, and thus Buyer's signature on
this Agreement does not constitute an acceptance of any offer. Instead, Buyer's delivery of this Agreement to
Seller, signed and initialed by Buyer, constitutes only Buyer's offer to purchase the Property upon the terms
and conditions contained herein. This Agreement shall not be binding on Seller and there shall be no contract
between the Parties unless and until Seller accepts Buyer's offer to purchase the Property, as evidenced by
Seller's execution of this Agreement and subsequent delivery of the executed Agreement to Buyer. Seller has
the right, without incurring any liability, to reject this Agreement without cause or explanation to Buyer.
1.2. Offer to be Delivered Electronically. Within forty-eight (48) hours of Buyer's receipt of this Agreement,
Buyer shall deliver to Seller this Agreement and all related documents, executed and initialed by Buyer and
executed by Selling Broker, if any. These documents shall be sent to Seller electronically via the DocuSign
execution and upload process.
1.3. Other Offer, Backup Offers. Seller reserves the right to continue to offer the Property for sale to others after
Buyer's delivery of this Agreement and/or Seller's acceptance of Buyer's offer and to accept backup offers at
Seller's sole and absolute discretion.
1.4. Offer Expiration Deadline. Buyer's offer shall expire on the Offer Expiration Date (as defined in Section
2.10) at 5:00 PM ET, unless accepted by Seller pursuant to the provisions of Section 1.1 hereof. If this
Agreement is not executed by Seller on or prior to the Offer Expiration Date, this Agreement shall be deemed
to have been rejected and cancelled and neither Party shall have any further rights, obligations, or liability to
or against the other hereunder.
1.5. Buyer's Option to Select Title Provider and Closing Agent. Buyer acknowledges that during the course of
Buyer's negotiation with Seller, Seller selected its choice of (i) title insurance company licensed in the state
where the Property is located to provide Buyer with its title insurance policy(ies) (the “Seller Title Provider”),
and (ii) the closing agent, and Buyer was given the option of either:
(a) Approving the Seller-selected closing agent and the Seller Title Provider, in which case Seller would
pay for the cost of Buyer's title insurance policies and all related search fees in accordance with
Section 8.2.2 hereof, AND one-half of all escrow and closing fees charged by Seller-selected closing
agent, not to exceed Four Hundred Fifty Dollars and NO/100 ($450.00), unless otherwise required by
law or agreed to in writing between the Parties; or
(b) Rejecting the Seller-selected closing agent and the Seller Title Provider in favor of a different closing
agent and title insurance company licensed in the state where the Property is located to provide Buyer
with its title insurance policy(ies) (“Buyer Title Provider”), in which case Buyer would pay for the
entire cost of Buyer's title insurance policies and all related search fees and all of the escrow and
closing fees charged by the Buyer-selected closing agent, without any contribution from Seller, and
the provisions of Section 8.2.1 shall apply.
Sample
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Buyer's decision regarding selection of either the Seller Title Provider or Buyer Title Provider and the selected
closing agent is shown in Sections 2.3 and 2.4 hereof. The selected title provided shall be hereinafter referred
to as the, “Title Provider” and the selected closing agent shall be hereinafter referred to as the “Closing
Agent”).
1.6. Technology Fee and Buyer's Premium. Buyer acknowledges its obligation to pay the Technology Fee and
Buyer's Premium, as applicable and as shown in Sections 2.13 and 2.14 hereof. The Parties hereby authorize
Closing Agent to pay these fees directly to Altisource Online Auction, Inc. on Buyer's behalf at Closing.
1.6.1 Buyer Election Regarding Financing of Fees. If Buyer is obtaining financing in order to purchase the
Property, then subject to Buyer’s lender’s approval, Buyer has a choice regarding whether to finance the
Technology Fee and Buyer’s Premium. If Buyer is choosing to finance the Technology Fee and Buyer’s
Premium, then those fees will be added to the Selected Bid Amount (as defined in Section 2.11 below). As
further described in Section 4.1 below, this total amount will be considered the total purchase price of the
Property and included as the “Contract Sales Price” (Sections 101 and 401) on the Settlement Statement
(HUD-1) and the fees will appear in the “Settlement charges to seller” section (Section 502) of the Settlement
Statement and shall be due from Seller at Closing. Buyer understands that this may result in an increase in
transfer taxes and/or title fees due from Buyer because, depending upon applicable local laws, rules or
regulations, calculation of those taxes and fees may be based on the total purchase price. If Buyer is choosing
not to finance the Technology Fee and Buyer’s Premium, then such amounts will not be included as part of
the purchase price for the Property and will not be reflected in the “Contract Sales Price” (Sections 101 and
401) on the Settlement Statement (HUD-1). Instead, the fees will appear in the “Settlement charges to
borrower” section (Section 103) of the Settlement Statement and shall be due from Buyer at Closing. Buyer’s
choice is reflected in Section 2.16 hereof.
1.6.2 No Election Necessary for Cash Transactions. If Buyer is not financing the purchase of the Property, then it is
not necessary to make an election regarding financing the Buyer’s Premium and Technology Fee. Such
amounts will not be included as part of the purchase price for the Property and will not be reflected in the
“Contract Sales Price” (Sections 101 and 401) on the Settlement Statement (HUD-1). Instead, the fees will
appear in the “Settlement charges to borrower” section (Section 103) of the Settlement Statement and shall be
due from Buyer at Closing.
1.7. No-Employment Relationship. Neither Buyer nor any of its Family Members are employees of Seller, the
Closing Agent, the Listing Broker or any of their Affiliates. Should Seller, the Closing Agent, the Listing
Broker or any of their Affiliates determine that Buyer or any of its Family Members are employees of Seller,
the Closing Agent, the Listing Broker or any of their Affiliates, the Agreement shall voidable and of no force
of effect at the election of Seller, without further recourse to Buyer; Seller, the Closing Agent, the Listing
Broker or any of their Affiliates shall be released from further liability thereunder. For the purposes of this
Agreement “Affiliate” shall mean any entity that, directly or indirectly through one or more intermediary,
controls, is controlled by or is under common control with a party, and “control” means possessing, directly or
indirectly, the power to direct or cause the direction of the management, policies or operations of an entity,
whether through ownership of voting securities, by contract or otherwise. “Family Member” shall mean, (a)
in the case of a Buyer who is an individual, Buyer’s spouse, parents, stepparents, children, stepchildren,
siblings, mothers- and fathers-in-law, sons- and daughters-in-law, brothers- and sisters-in-law and anyone
residing in Buyer’s home (other than a tenant or employee), or (b) in the case of a Buyer who is an entity,
Buyer’s Affiliates and any of their respective directors, officers, employees, shareholders, members,
managers, partners. Sample
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2 SIGNIFICANT TRANSACTION TERMS AND DEFINITIONS.
# Defined Term Definition
2.1. Seller:
2.2. Buyer (whether one or more):
2.3. Closing Agent:
(selected by )
2.4. Title Provider:
(selected by )
2.5. Cooperating Selling Broker or
Buyer's Agent (if any):
2.6. Listing Broker and
Listing Agent:
Co-Listing Sales Agent (if any):
See Exhibit A for Seller, Buyer, Closing Agent, Title Provider and Brokers’ Contact Information
2.7. Property: The real property, improvements, appurtenances and
hereditaments located at
2.8. Intentionally omitted Intentionally omitted
2.9. Seller Property Id. No:
2.10. Offer Expiration Date: (See Section 1.4)
2.11. Selected Bid Amount/Offer Amount: $ (See Section 4.1 )
2.12. Earnest Money: $ (See Section 4.1.1 )
2.13. Technology Fee: $ (See Section 1.6)
2.14. Buyer's Premium:
$ (See Section 1.6)
2.15. Total Due from Buyer (includes
Selected Bid Amount/Offer Amount,
Technology Fee and Buyers
Premium, if any)
$ (See Section 4.1.2 )
2.16 Buyer’s Election regarding Financing
of Buyer’s Premium and Technology
Fee:
NO, Buyer does not want to finance the Buyer’s
Premium and Technology Fee because either (i) this
is a cash transaction, or (ii) this is a transaction
involving financing, but Buyer has chosen not to
finance these fees
OR
YES, subject to Lender approval, Buyer elects to
finance the Buyer’s Premium and Technology Fee
(option not available for cash transactions) Sample
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# Defined Term Definition
2.17. Total Seller Concessions (if any): $ (See Section 6 )
2.18. Mortgage Commitment Contingency
Amount:
$ (See Section 6.2 )
2.19. Mortgage Commitment Contingency
Deadline:
2.20. Inspection Contingency: (See Section 7.1 )
2.21. Inspection Contingency Deadline: (See Section 9.4 )
2.22. Closing Date: (See Section 9.4 )
2.23. Last Known Occupancy Status at
Time of Listing:
(See Section 11 )
Sample
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3. SALE OF PROPERTY.
Subject to the terms and conditions of this Agreement, and subject to applicable law, Seller shall sell
to Buyer and Buyer shall purchase from Seller the Property.
4. PURCHASE PRICE.
4.1. Calculation of Purchase Price; Timing of Payments of Total Amount Due from Buyer. The
purchase price of the Property shall be determined based on whether Buyer has elected to finance the
Buyer’s Premium and Technology Fee as described in Section 1.5. Buyer’s choice is noted in
Section 2.16. If Buyer has chosen to finance the Buyer’s Premium and Technology Fee, then the
purchase price for the Property shall be equal to the Total Amount Due from Buyer as set forth in
Section 2.15. On the other hand, if Buyer has elected not to finance the Buyer’s Premium and
Technology Fee or if Buyer’s lender does not allow those fees to be financed, then the purchase price
for the Property shall be equal to the Selected Bid Amount/Offer Amount set forth in Section 2.11.
Regardless of Buyer’s choice regarding the financing of the Buyer’s Premium and Technology Fee,
the Total Amount Due from Buyer shall be due and payable by Buyer as follows:
4.1.1. Earnest Money. Within forty-eight (48) hours of Buyer's receipt of a fully executed copy of this
Agreement, TIME BEING OF THE ESSENCE, Buyer and Cooperating Selling Broker shall deliver
or cause to be delivered to Closing Agent the following: (a) the Earnest Money in Readily Available
Funds; (b) a copy of the fully executed Agreement; and (c) Buyer's Lender's contact information, if
applicable. “Readily Available Funds” shall mean funds delivered to the account of the Closing
Agent in the manner designated by the Closing Agent and available for disbursement to Seller and
other third parties, as applicable in accordance with the terms of this Agreement. Buyer
acknowledges that Closing Agent may not accept all forms of payment, and Seller strongly
encourages Buyer to submit payment via wire transfer.
4.1.2. Balance of Total Due from Buyer. At Closing, TIME BEING OF THE ESSENCE, Buyer shall
deliver or cause to be delivered to Closing Agent the remaining balance of the Total Due from Buyer
(after taking into account the credit(s) to Buyer for the Deposit (as defined in Section 5.1 below) in
Readily Available Funds.
4.1.3. Failure to Deliver the Earnest Money. Buyer's failure to timely deliver or cause to be delivered the
Earnest Money or any other item described in Section 4.1.1 above to Closing Agent shall constitute a
default by Buyer under this Agreement and shall entitle Seller to exercise any of the remedies set forth
in Section 12 hereof. Notwithstanding the foregoing, Buyer’s failure to timely deliver the Earnest
Money to Closing Agent may, at Seller’s option in its sole and absolute discretion, be deemed a non-
curable default by Buyer and this Agreement may be cancelled by Seller at any time and have no
further force and effect.
4.2. Seller Concessions. Buyer shall not be entitled to any credits or concessions at Closing for the
condition or repair of the Property, except for the following listed concessions, if any:
# Purpose Seller's Concession
4.2.1. Credit to Buyer's Closing Costs $
4.2.2. Credit to Buyer's Repair Costs $
5. DEPOSIT.
5.1. Definition. The term “Deposit” shall be used to refer to the sum/totality/combination of the Earnest
Money, plus any additional deposit(s), plus any other subsequent deposits held in trust, including but
not limited to any amounts paid by Buyer pursuant to Section 9.4.2. Sample
Purchase and Sale Agreement Buyer's Initials: \byer_init\ / \co_byer_init\ Page 8 ©2017 Altisource Portfolio Solutions S.A. All rights reserved
5.2. Nature of Deposit. The Deposit is non-refundable except in the event Buyer properly terminates this
Agreement pursuant to the terms of the financing contingency in accordance with Section 6 hereof or
the inspection contingency in accordance with Section 7 hereof, as may be applicable, or in the event
of a Seller default pursuant to Section 12.3 hereof. Notwithstanding the foregoing, a portion of the
Deposit may be retained by Seller pursuant to Section 5.4.
5.3. Transfer of Deposit. If the Cooperating Selling Broker is holding any of the Deposit (including, but
not limited to, the Earnest Money), the Cooperating Selling Broker shall transfer the Deposit to the
Closing Agent's account on the earlier to occur of (i) forty-eight hours after receipt by Cooperating
Selling Broker and (ii) no later than ten (10) business days prior to the Closing Date as listed in
Section 2.22, regardless of any extensions of the Closing Date. Buyer acknowledges and agrees that
the Deposit and any other funds related to Closing shall be deposited in a non-interest bearing
account.
5.4. Return of Deposit. Any reference to a return of the Deposit to Buyer contained in this Agreement
shall mean a return of the Deposit less (i) any cancellation fees charged by the Title Provider and
Closing Agent, if any, and (ii) where allowable by law, any costs payable for services and products
provided during escrow at Buyer's request or on Buyer's behalf in accordance with Section 10.
6. MORTGAGE COMMITMENT CONTINGENCY.
6.1. Sale Not Contingent on Mortgage Commitment or Financing. If the Mortgage Commitment
Contingency Amount in Section 2.18 is zero ($0.00), then this Agreement is not subject to receipt of a
mortgage commitment or any financing contingency and Section 6.2 and its subsections do not apply
and the remainder of this Section 6.1 shall apply. Buyer understands and agrees that Buyer's
obligations under this Agreement are not conditioned upon: (a) Buyer's application for a mortgage
loan; (b) Buyer's delivery of a commitment for a mortgage loan from any lender; (c) Buyer's
acceptance of such a commitment or (d) buyer securing financing for the purchase price (or any
portion thereof) or the Total Due from Buyer. Buyer’s failure to obtain any financing will not relieve
Buyer of Buyer’s obligations hereunder. Buyer represents to Seller that Buyer has sufficient Readily
Available Funds to complete the purchase of the Property. If Buyer is unable to submit Readily
Available Funds at the time of the Closing Date to Seller, then Seller shall be entitled to exercise all
remedies available to Seller pursuant to Section 12.1.
6.2. Sale Contingent on Mortgage Commitment. If the Mortgage Commitment Contingency Amount in
Section 2.18 is not zero ($0.00), then this Agreement is subject to the following mortgage
commitment contingency and Section 6.1 does not apply and the remainder of this Section 6.2 shall
apply.
6.2.1. Deadline for Commitment. This Agreement is subject to the condition that on or before the Mortgage
Commitment Contingency Deadline, Buyer shall secure a written commitment for a loan from a
federal or state chartered or regulated lender or any other source acceptable to Seller (“Lender”) to be
secured by a mortgage or deed of trust on the Property in the amount of the Mortgage Commitment
Contingency Amount or such lesser sum as Buyer accepts (the “Commitment”). If Buyer provides
Seller with Lender's written notice that Buyer's financing has been declined or no Commitment has
been issued by 5:00 pm ET on the Mortgage Commitment Contingency Deadline through no fault or
arrangement of Buyer, then this Agreement shall become null and void and the Deposit shall be
returned to Buyer and neither party shall have any further rights, obligations, or liability to or against
the other hereunder. If Buyer fails to give timely notice of cancellation pursuant to the terms of the
previous sentence, TIME BEING OF THE ESSENCE, then: (a) Buyer shall be deemed to have
waived Buyer’s right to cancel this Agreement and to receive a refund of the Deposit by reason by the
contingency contained in this Section 6.2, and (b) this Agreement shall remain in full force and effect
without any contingency for receipt of a mortgage commitment. Sample
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6.2.2. Buyer's Expense. Buyer shall, at Buyer's expense, promptly execute all documents and take any other
steps necessary to procure a mortgage loan from Buyer's Lender, including but not limited to,
furnishing accurate and complete information, as required, paying all fees, points and charged
required in connection with the loan application and the loan, pursuing such application and loan with
diligence and cooperating in good faith with the lender to obtain the Commitment and loan. Buyer
shall furnish Seller with a copy of the Commitment promptly after receipt thereof. Any delays caused
by Buyer's Lender, whether a result of Buyer's conduct or not, shall constitute a default by Buyer.
6.2.3. Buyer's Authorization for Lender. Buyer hereby authorizes Lender (and/or Lender's successors and
assigns) to discuss with Seller, Seller's representatives and agents, the Buyer's loan application
including, but not limited to, the Buyer's credit history (including a credit report), income, debts and
the progress of the entire loan application.
7. INSPECTION CONTINGENCY.
7.1. Sale Not Contingent on Property Inspection. If the Inspection Contingency box in Section 2.20
contains the word “No”, then this Agreement is not subject to a property inspection contingency and
Section 7.2 and its subsections do not apply and this Section 7.1 does apply. Buyer represents and
warrants to Seller that Buyer is fully aware of the physical condition and state of repair of the
Property and that:
(a) Prior to execution of this Agreement, Buyer has had sufficient time and access to the Property
to examine the condition of the Property and its surrounding area, the title of the Property,
any Community Documents governing the Property pursuant to Section 13.3.3, the
occupancy status of the Property and any other matter which may affect Buyer's decision to
execute this Agreement, including but not limited to those matters listed in Section 13; and
(b) Buyer has either conducted or caused to be conducted examinations of the Property as Buyer
deems necessary, or waived the opportunity to conduct or cause to be conducted any
examinations of the Property.
Buyer hereby waives the opportunity to conduct any additional examinations of the Property.
7.2. Sale Contingent on Property Inspection. If the Inspection Contingency box in Section 2.20
contains the word “Yes”, then this Agreement is subject to a property inspection contingency and
Section 7.1 does not apply and the remainder of this Section 7.2 shall apply.
7.2.1. Professional Inspection Encouraged. BUYER IS ENCOURAGED TO OBTAIN THE SERVICES
OF A QUALIFIED AND EXPERIENCED PROFESSIONAL TO CONDUCT INSPECTIONS,
ASSESSMENTS AND TESTS PRIOR TO THE END OF THE INSPECTION PERIOD, AS
THE EXISTENCE OF CERTAIN CONDITIONS, INCLUDING BUT NOT LIMITED TO
THOSE LISTED BELOW, COULD CAUSE SERIOUS HEALTH PROBLEMS AND/OR A
SUBSTANTIAL REDUCTION IN PROPERTY VALUE. BUYER AGREES TO ASSUME
ANY AND ALL RISKS OF BODILY INJURY, DEATH OR PROPERTY DAMAGE AND
DOES HEREBY RELEASE AND WAIVE ANY RIGHTS THAT BUYER MAY HAVE
AGAINST SELLER AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VOLUNTEERS,
AGENTS, CONTRACTORS, AND REPRESENTATIVES FOR ANY INJURIES OR
DAMANGE ARISING FROM OR RELATING TO THE PROPERTY.
7.2.2. Utilities. If any of the Property’s utilities are not activated as of the Effective Date and Buyer requires
them for the Inspections (as defined in Section 7.2.3), Buyer may activate electric and gas service at
Buyer’s expense. BUYER MAY NOT ACTIVATE WATER SERVICE TO THE PROPERTY.
However, Buyer may, at Buyer’s expense, perform a compressed air pressure test of the Property’s
plumbing system. Sample
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7.2.3. Inspection Period, Inspection Costs. During the period beginning on the Effective Date and ending at
5:00 pm ET on the Inspection Contingency Deadline (the “Inspection Period”), Buyer, at Buyer’s sole
cost and expense, shall have the opportunity to inspect the Property, its condition and surroundings,
including, but not limited to, environmental conditions, asbestos, radon gas, lead-based paint (see
Section 13.3.4), mold, physical defects including structural defects, roof, basement, mechanical
systems such as heating and air conditioning, electrical systems, sewage and septic systems,
plumbing, soils, geology, topography, exterior site drainage, termite and other types of pest and insect
infestation or damage caused by such infestation and boundary or other physical surveys and review
any and all title documents and Community Documents (collectively, the “Inspections”). Any and all
costs and expenses associated with the Inspections, including the establishment, connection and cost
of electric and gas service, shall be referred to as “Inspection Costs”. Regardless of whether the
transaction closes or fails to close due to an issue stemming from the Inspections, Seller shall not be
required to reimburse Buyer for any of the Inspection Costs, which shall be the sole and exclusive
cost of Buyer. Buyer acknowledges that Seller shall not supply surveys, boundary surveys or
footprint surveys and Buyer shall be solely responsible to obtain the same if Buyer elects.
7.2.4. Exercise, Waiver of Contingency. If Buyer, pursuant to the Inspections, timely objects to any
condition of the Property by the Inspection Contingency Deadline, then Buyer, at Buyer's sole option,
may terminate this Agreement and neither Party shall have any further obligations to the other Party
except as otherwise provided in this Section 7.2.4. Following Buyer's termination of this Agreement
pursuant to this Section, and subject to the terms of Section 7.2.5 below, Seller will authorize the
return of the Deposit to Buyer. If, for any reason, Buyer does not give Seller written notice of
cancellation by 5:00 pm ET on the Inspection Contingency Deadline, TIME BEING OF THE
ESSENCE, then Buyer shall conclusively be deemed to have: (a) completed and been satisfied with or
waived the Inspections and any investigations and review of applicable documents and disclosures
and removed all inspection-related contingencies; (b) elected to proceed with the transaction; and (c)
assumed all liability, responsibility, and expense for repairs or corrections other than for items which
Seller has otherwise agreed in writing to repair, correct or credit.
7.2.5. Inspection Reports. In the event Buyer terminates this Agreement pursuant to Section 7.2.4, Seller
shall have the right to request and receive copies of any or all of the written reports arising from the
Inspections (the “Inspection Reports”) as a condition to authorizing the refund of the Deposit to
Buyer. In the event Seller requests from Buyer copies of any or all of the Inspection Reports, Buyer
agrees to submit the requested Inspection Reports to Seller no later than one (1) business day
following Seller's request for the Inspection Reports. Following Seller's receipt and approval of any
requested Inspection Reports, Seller will authorize the refund of the Deposit to Buyer.
7.2.6. Repairs, Indemnification. Buyer shall repair all damages arising from or caused by the Inspections,
including, but not limited to, damages arising from or relating to Buyer’s activation or deactivation of
the Property’s utilities. Buyer shall keep the Property free and clear of liens arising from Buyer’s
Inspections. Buyer shall indemnify and hold Seller harmless from all liability claims, demands,
damages, and costs related to Buyer’s Inspections and any other inspection conducted by Buyer or at
Buyer’s direction after the Effective Date. Buyer shall not directly or indirectly cause any Inspections
to be made by any government, building or zoning inspectors or government employees without the
prior written consent of Seller, unless required by law, in which case, Buyer shall provide reasonable
advance written notice to Seller prior to any of those Inspections.
8. TITLE.
8.1. Transfer of Title. Insurable title shall be delivered to Buyer by deed on a form acceptable to Seller at
Seller's sole and absolute discretion. The deed to be delivered by Seller at Closing shall be a deed that
covenants that grantor grants only that title which grantor may have and that grantor will only defend
title against persons claiming by, through or under the grantor, but not otherwise. Seller's conveyance Sample
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of title will be subject to tenants or other parties in possession of the Property, if any, pursuant to
Section 11.
8.2. Title Insurance.
8.2.1. Title Provider Selected by Buyer. If Buyer elected to choose the Buyer Title Provider in accordance
with Section 1.5, then Section 8.2.2 (and its subsections) do not apply and the remainder of this
Section 8.2.1 (and its subsection) shall apply. Buyer may choose to obtain, and is encouraged to
obtain, an owner's policy of title insurance (“Owner's Policy”) at its own cost without any contribution
from Seller. Buyer shall also be responsible for obtaining any required lender's policy of title
insurance (“Lender's Policy”). Buyer shall pay for any Owner's Policy, any Lender's Policy and all
related search fees without any contribution from Seller.
8.2.1.1 Title Report, Seller Copies. Within seven (7) days after the Effective Date, Buyer will order
from Buyer Title Provider either (a) commitment for the Owner's Policy (the “Title Binder”),
or (b) a title report or opinion of title (the “Title Opinion”). Upon receipt, Buyer shall
immediately provide, or cause to be provided, to Seller in electronic form true, correct and
complete copies of the Title Binder or Title Opinion, as applicable, and all documents of
record referenced therein.
8.2.2. Title Provider Selected by Seller. If Buyer elected to choose the Seller Title Provider, in accordance
with Section 1.5, then Section 8.2.1 (and its subsection) do not apply and this Section 8.2.2 (and its
subsections) shall apply. Seller, at its own cost, shall obtain an Owner's Policy for Buyer. Seller shall
also be responsible for obtaining any required Lender's Policy. Seller shall pay for a standard Owner's
Policy and a standard Lender's Policy providing standard coverage in the amount of the Selected Bid
Amount/Offer Amount at standard insurance rates, and all related search fees.
8.2.2.1 Title Report, Buyer Copies. Within seven (7) days after the Effective Date, Seller will order
from Seller Title Provider either: (a) the Title Binder, or (b) the Title Opinion. Upon receipt,
Seller shall immediately provide, or cause to be provided, to Closing Agent and Buyer
electronic copies of the Title Binder or Title Opinion, as applicable, and all documents of
record referenced therein.
8.2.2.2 Title Abstract, Title Endorsements, Extended Coverages. If Buyer chooses to obtain a
separate title abstract or any title insurance endorsements or extended title insurance
coverages to either the Owner's Policy or the Lender's Policy, Buyer may do so at Buyer's
sole cost and expense without any contribution from Seller.
8.2.2.3 Buyer, Lender Cooperation. Buyer shall cooperate, and instruct Buyer's Lender, contractors
and agents to cooperate, with Seller in the procurement of the Owner's Policy.
8.3. Title Defects.
8.3.1. Notice of Defects. Buyer shall have five (5) days from the date of Buyer's receipt of the Title Binder
or Title Opinion to examine title and raise any title objections which, if valid, would make title to the
Property uninsurable. Buyer's objections must be made in writing and delivered to Seller by 5:00 pm
ET on the last day of the aforementioned five (5) day period, TIME BEING OF THE ESSENCE, or
Buyer's objections shall be deemed waived.
8.3.2. Seller's Response, Buyer's Options. If Buyer raises any title objection, Seller shall have the right to
extend the Closing Date pursuant to Section 9.4.1 to attempt to resolve such title objections or
terminate this Agreement in accordance with Section 12.4. If Seller chooses not to exercise its right
to terminate this Agreement and is able to cure the title objection and is able to deliver insurable title,
then the Parties shall proceed to Closing within three (3) business days of Seller's resolution of the
title objection. If, on the other hand, Seller determines that Seller is unable or unwilling, at Seller's
sole discretion, to make the title insurable or to obtain an Owner's Policy subject only to the rights of Sample
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tenants or other parties in possession of the Property, if any, and standard exceptions in the
jurisdiction in which the Property is located, then, subject to Seller’s exercise of its right to terminate
this Agreement, Buyer may elect to: (a) take title to the Property in its then current condition without
any abatement of the Total Amount Due from Buyer and without any liability on the part of Seller,
thereby waiving any title objections, in which case the Parties shall proceed to Closing on the Closing
Date, or within three (3) business days thereafter; or (b) terminate this Agreement and receive a
refund of the Deposit subject to the provisions in Section 5.4. Buyer's options contained in the
previous sentence shall be Buyer's sole and exclusive remedies at law or in equity against Seller for
Seller's inability or unwillingness to deliver insurable title to the Property.
8.3.3. No Obligation to Cure Defects. Seller shall be under no obligation to: (a) remove any exception or
cure any alleged title defect; (b) bring any action or proceeding or bear any expense in order to enable
Seller to convey insurable title to the Property in accordance with this Agreement, or (c) otherwise
make the title to the Property insurable. Any attempt by the Seller to remove such title exceptions
shall not impose an obligation upon the Seller to remove those exceptions.
8.3.4. Buyer's Acknowledgment of Potential Foreclosure Rights. Buyer acknowledges that Seller's title to
the Property may be subject to court approval of foreclosure, expiration of bid periods or a
mortgagor's right of redemption and Seller shall have the right to unilaterally extend the Closing Date
pursuant to Section 9.4.1 if necessary.
9. CLOSING.
9.1. TIME OF THE ESSENCE. IT IS AGREED THAT TIME IS OF THE ESSENCE WITH
RESPECT TO ALL DATES SPECIFIED IN THIS AGREEMENT AND ANY ADDENDA,
EXHIBITS, RIDERS OR AMENDMENTS HERETO. THIS MEANS THAT ALL DEADLINES
ARE INTENDED TO BE STRICT AND ABSOLUTE.
9.2. Buyer's Legal Representation. Buyer is entitled to legal representation at or before Closing and
may elect to have such representation at Buyer's sole cost and expense.
9.3. Closing Date and Location. The transaction contemplated by this Agreement (the “Closing”) shall
be consummated in escrow through the Closing Agent on or before the Closing Date as defined in
Section 2.22. If, pursuant to Section 9.4, the Closing Date is extended, then the term “Closing Date”
shall refer to the extended Closing Date. The location of the Closing shall be held in the offices of the
Closing Agent, or at a place so designated and approved by Seller, unless otherwise required by
applicable law.
9.4. Extensions of Closing Date. Closing Agent shall conduct the Closing on or before the Closing Date
pursuant to Section 9.3, subject to each of the following:
9.4.1. Seller's Unilateral Right to Extend. If, in Seller's sole discretion, Seller is unable to close the
transaction contemplated by this Agreement on or before the original Closing Date, then such Closing
Date shall be automatically extended for thirty (30) days; provided, however, that Seller, Seller's
representatives, Seller's agent or the Closing Agent may give Buyer written notice during such thirty
(30) day period that Seller is ready to close and the Closing shall occur within five (5) days following
such written notice. Any further extensions must be agreed to in writing by both Buyer and Seller.
9.4.2. Buyer-Requested Extensions. If Buyer requests an extension of the Closing Date in writing at least
five (5) days prior to the scheduled Closing Date, and Seller, in Seller's sole and absolute discretion,
agrees to grant such request for extension. Seller shall prepare a Closing Date Extension Amendment
which shall be executed by both Parties. Buyer acknowledges that the Closing Date Extension
Amendment will require Buyer to pay Seller, as a condition of Seller's execution of this Amendment,
a (1) $300.00 fee for the extension, and (2) a per diem fee of $100.00 for each day that the Closing
Date is extended, regardless of whether the Closing actually occurs before the Closing Date. If Buyer
agrees to such extension, then Buyer shall deliver the signed Amendment and the check to the Closing Sample
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Agent within one (1) business day thereafter. These fees shall be considered part of the Deposit
pursuant to Section 5.1.
9.5. Conditions Precedent. The occurrence of the Closing is subject to each of the following conditions
precedent (the failure of any of which shall not, in and of itself, relieve any Party of its obligations set
forth elsewhere in this Agreement):
(a) Seller shall have delivered the Seller's Deliverables set forth in Section 9.7.1;
(b) Buyer shall have delivered the Buyer's Deliverables set forth in Section 9.7.2;
(c) Seller shall not have given written notice to Closing Agent that Buyer is in default of this
Agreement; and
(d) The Title Provider shall have irrevocably committed to issue to Buyer the Owner's Policy
covering the Property showing coverage in the amount of the Purchase Price and showing
insurable title to the Property.
9.6. Escrow Instructions. Neither party shall be required to be present at the Closing, unless otherwise
required by applicable law or agreed to by the parties. Seller and Buyer agree to cause all documents
and deliverables required to be delivered by the parties hereunder and by any necessary third parties,
including by not limited to the those deliverables required pursuant to Section 9.7 hereof, to be
delivered to Closing Agent prior to the Closing Date, and Closing Agent shall disburse the documents
and funds on the Closing Date in accordance with the requirements of this Agreement or any further
closing escrow instructions agreed to in writing by Seller, Buyer and Closing Agent.
9.7. Deliveries to Closing Agent.
9.7.1. By Seller. On or prior to Closing, Seller shall deliver to the Closing Agent (the “Seller's
Deliverables”):
(a) A deed transferring Seller's interest in the Property to Buyer, subject to the terms of this
Agreement, executed by Seller, lawfully acknowledged and in compliance with Section 8.1;
(b) A FIRPTA Affidavit, as applicable;
(c) Tax forms required to be delivered under county, state or federal tax law, if any;
(d) Forms or disclosures required by state law, if any; and
(e) An executed settlement statement prepared by the Closing Agent (in the case of cash
transactions) or Lender (in the case of transactions involving financing) and approved by
Seller and Buyer (the “Settlement Statement”).
9.7.2. By Buyer. On or prior to Closing, Buyer shall deliver to the Closing Agent (the “Buyer's
Deliverables”):
(a) Readily Available Funds, as defined in Section 9.7.3, in an amount equal to the Total Due
from Buyer less a credit for the Earnest Money previously paid by Buyer to Closing Agent,
plus Buyer's expenses and share of closing costs and prorations as set forth in Section 10;
(b) An executed Settlement Statement; and
(c) Any and all other instruments required by Lender, Title Provider, Closing Agent or otherwise
to consummate Buyer's purchase of the Property.
9.7.3. Readily Available Funds. Buyer shall deliver, or cause to be delivered, all funds necessary to close
hereunder as shown on the Settlement Statement, including all funds due Seller from the sale in the
form of Readily Available Funds.
Sample
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10. CLOSING COSTS AND ADJUSTMENTS.
10.1. Closing Costs - Items to be Prorated. The Closing Agent shall prorate the following costs and
expenses as of the Closing Date, with the day of Closing being the responsibility of Buyer:
(a) Real property taxes and assessments, except special assessment district bonds and
assessments provided for in Section 10.2(a);
(b) Municipal water and sewer charges;
(c) Condominium, planned unit development or similar community assessments; cooperative
fees, maintenance fees, homeowner association regular, special and emergency dues and
assessments imposed prior to the Closing Date; and
(d) Payments of bonds, and other special assessment district bonds and assessments imposed
prior to the Closing Date.
10.2. Closing Costs - Items Not to be Prorated. The Closing Agent shall not prorate the following
expenses:
(a) Payment of special assessment district bonds and assessments. These items shall be paid
current by Seller, but payments not yet due and owing shall be assumed by Buyer without
credit from Seller toward the Total Amount Due from Buyer; and
(b) Insurance premiums. Seller cannot endorse or assign existing insurance policies (if any) to
Buyer, and Seller reserves the right to cancel any existing insurance on the Property as of the
Closing Date.
10.3. Closing Costs - Items to be Credited to Seller. If any of the items listed in Section 10.1, including
but not limited to, the regular homeowner association dues or property taxes, were paid prior to the
Closing Date for a period of time subsequent to such date, then Buyer shall pay to Seller at Closing
that portion of the assessment attributable to the period of time after the Closing Date.
10.4. Seller's Expenses. At Closing, if Buyer elected to utilize the Seller Title Provider and the Seller
selected closing agent, then the Seller shall pay: (a) the premium for the Owner's Policy and any
Lender's Policy and any title search fee if required by Section 8.2.2; (b) Seller's share of prorations
under Section 10.1; and (c) one half of all escrow and closing fees and charges charged by Closing
Agent, not to exceed Four Hundred Fifty and No/100 Dollars ($450.00), unless otherwise required by
law or agreed to in writing by the Parties. Seller shall not be responsible for any amounts due, paid or
to be paid after Closing. In the event Seller has paid any taxes, special assessments or other fees and
there is a refund of any such taxes, assessments or fees after the Closing, and Buyer as current owner
of the Property receives the payment, Buyer will immediately submit the refund to Seller. Closing
Agent is hereby authorized to pay from Seller's proceeds Seller's expenses set forth in this Section 10.
At Closing, if the Buyer has selected its own Title Provider and Closing Agent then the Buyer shall
pay all closing costs as indicated in Section 10.5.
10.5. Buyer's Expenses. Notwithstanding anything to the contrary contained herein but subject to Section
10.4 hereof, at Closing, Buyer shall pay all costs of: (a) the premium for the Owner’s Policy and any
Lender’s Policy and any title search fee if obtained under Section 8.2.1; (b) a separate Title Abstract
or any title insurance endorsements or extended title insurance coverages to either the Owner’s Policy
or the Lender’s Policy; (c) costs of any credit reports required by Lender; (d) loan fees, loan points
and other costs of obtaining Buyer’s financing; (e) lender’s title insurance charges for the Lender’s
Policy in excess of any amount paid by Seller pursuant to Sections 8.2.2 and 10.4, if any; (f) all
escrow and closing fees and charges charged by Closing Agent, less any amount paid by Seller
pursuant to Section 10.4, if any, unless otherwise required by law or agreed to in writing by the
Parties; (g) any and all realty tax service fees; (h) any and all recordation fees for the deed of Sample
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conveyance and any mortgage; (i) Buyer’s share of prorations and charges under Section 10.1; (j) the
first month’s condominium/homeowner’s association membership fees and assessments, if any; (k)
the Technology Fee and Buyer’s Premium (if any and as indicated in Sections 2.13 & 2.14) payable to
Altisource Online Auction, Inc.; and (l) all other closing and loan costs of Buyer. All other costs and
expenses, including any cost, expense or transfer tax imposed by any state or local entity not
otherwise addressed herein, shall be paid by Buyer at Closing. Any expenses, including any cost,
expense or transfer tax discovered after Closing shall be the sole responsibility of Buyer.
10.5.1. Transfer Taxes. Regardless of local custom or practice, Buyer shall pay any and all real estate
transfer taxes due as a result of the transfer of the property, including but not limited to documentary
stamp taxes, excise taxes, or other documentary transfer taxes or deed taxes, unless explicitly imposed
upon the Seller by applicable state law and such law does not permit assignment or payment by buyer.
10.5.2. Reports, Inspections, Repairs. To the extent permitted by law, any and all termite clearances and
reports and any inspections required by a lender, and/or repairs recommended or required by any
termite and/or property inspection report including, but not limited to, any roof certifications, shall all
be at the sole cost and expense of Buyer.
10.5.3. HOA Fees. To the extent permitted by law, any homeowners' association or condominium
association transfer fees or documents fees payable in connection with the sale of the Property from
Seller to Buyer shall be paid by Buyer.
10.6. Pre-Closing Expenses. Buyer and Seller are aware that the Closing Agent and/or the Title Provider
may incur certain expenses during the course of processing this transaction that must be paid prior to
Closing. Such costs may include, but are not limited to, demand request fees, homeowner association
document fees, courier fees, overnight mail service and building and/or inspection reports, if
applicable. Closing Agent is authorized and instructed to release funds for payment of such costs
prior to Closing from the Earnest Money. Prior to such release, Closing Agent shall provide written
notice to Buyer and Seller. The Parties acknowledge that any funds released under this Section are
not refundable and Closing Agent and Title Agent are specifically released from all responsibility
and/or liability for payment of any funds released under this Section. At Closing, Closing Agent is
authorized to charge the appropriate Party for costs incurred or credit either one if necessary.
10.7. Post-Closing Tax Adjustments. Buyer agrees to pay any shortages in taxes directly to the taxing
authority, if such shortages were attributable to the time period from and after Closing. Seller agrees
to pay any shortages in taxes attributable to periods of time prior to Closing upon notification of such
shortages by Buyer to Seller. Notwithstanding the foregoing, Seller shall have no obligation to pay
such shortages unless Buyer notifies Seller in writing and submits the tax bill to Seller not later than
ten (10) days from the date of Closing.
11. PARTIES IN POSSESSION OF THE PROPERTY.
11.1. Occupancy.
11.1.1. Occupancy Status. At the time the Property was listed for sale, Seller believed that the Property
was , but Seller has not made, nor does Seller make now, any representations or warranties
as to whether the Property is occupied as of the Effective Date or will be occupied on the Closing
Date. Buyer waives any right to terminate this Agreement based on the actual occupancy status of the
Property at any time and agrees to accept the Property subject to any occupancy which exists as of the
Closing Date.
11.1.2. Buyer's Acknowledgements Regarding Occupancy. Buyer acknowledges and agrees that (i) it is
Buyer's sole responsibility to determine and verify the occupancy status of the Property, both as of the
Effective Date and the Closing Date, (ii) the Property may be subject to leasehold or other interests of
various tenants or other occupants, (iii) because the Property was acquired by Seller through Sample
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foreclosure, deed in lieu thereof, trustee's sale pursuant to a power of sale under a deed of trust, power
of sale under a mortgage, sheriff's sale or similar action, in the event that an occupancy agreement
exists at the Property, Seller may not have any security deposits or prepaid rent to surrender to Buyer
and shall not be under any obligation to do so unless otherwise required by law and Buyer shall be
responsible for notifying any and all tenants, if any, of the transfer of ownership of the Property, and
shall be liable to any and all tenants for repayment of any outstanding security deposit, less lawful
deductions, (iv) Buyer may be subject to federal or state laws regarding tenants’ rights in the context
of a foreclosed property, as applicable, (v) the Property’s occupancy status shall not provide grounds
for Buyer’s failure to consummate the transaction provided for herein and (vi) Buyer shall not be
entitled to any concessions, abatements or other credits against the Selected Bid Amount/Offer
Amount or extension of the Closing Date because of any such occupancy.
11.1.3. Buyer’s Covenants Regarding Occupancy. Buyer covenants and agrees that (i) Buyer shall not disturb
in any way the Property or any occupant of the Property prior to the Closing, (ii) Buyer assumes the
responsibility as of the Closing Date for any ongoing eviction efforts previously initiated by Seller, if
any, and (iii) Buyer shall be solely responsible for notifying any tenants or occupants of the transfer of
ownership of the Property as of the Closing Date. This provision shall survive the Closing and shall
not be deemed to have merged into any of the documents executed or delivered at Closing.
11.2. No Warranties or Representations about Tenancies. The Property may be subject to leasehold or
other interests of various tenants or other occupants. Seller makes no warranties or representations as
to any existing occupancy rights at the Property, including but not limited to, whether or not any
leases affect the Property, whether any leases are or will be in force; whether or not anyone has a right
of possession; whether or not any rent concessions were given to any tenant; whether or not any
agreements were made with any tenants or other parties or notices were provided to any tenant;
whether or not any rent charged violates any applicable rent control ordinance, statute, or law;
whether or not any other violations of any applicable ordinance, statute or law exist; and whether or
not Seller or any tenant is in default under any lease. Buyer shall assume all obligations under any
and all leases, tenancies, licenses and other rights of occupancy or use of the Property or any portion
thereof. This provision shall survive the Closing and shall not be deemed to have merged into any of
the documents executed or delivered at Closing.
11.3. No Early Possession or Alteration. Prior to Closing and disbursement of sale proceeds, Buyer: (a)
will not be given possession of the Property; (b) may not occupy the Property; (c) may not store
personal property on the Property; and (d) except in connection with an inspection in accordance with
the terms hereof, may not access the Property without the prior consent of Seller, which may withheld
in Seller’s sole discretion. If Buyer alters the Property or causes the Property to be altered in any way
and/or impermissibly occupies the Property or allows any other person to occupy the Property prior to
Closing and funding without the prior written consent of Seller, such event shall constitute a breach
by Buyer under this Agreement and Seller may terminate this Agreement pursuant to Section 12.1,
and Buyer shall be liable to Seller for damages, losses, expenses, claims or demands caused by any
such alteration or occupation of the Property prior to the Closing Date and funding. Buyer hereby
waives any and all claims for damages or compensation for improvements made by Buyer to the
Property including, but not limited to, any claims for unjust enrichment.
12. DEFAULT AND REMEDIES.
12.1. Buyer's Default. If Buyer: (a) fails to complete this transaction by reason of any default of Buyer
hereunder, (b) fails to perform any of Buyer’s obligations, or (c) breaches any of Buyer’s
representations, warranties or covenants, as determined by Seller in Seller's sole discretion, then Seller
shall have the right to terminate this Agreement by giving notice to Buyer and Closing Agent and
Seller, at Seller's option, may (i) retain the Deposit and any other funds then paid by Buyer as Sample
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liquidated damages, it being agreed that Seller’s damages in case of Buyer’s default might be
impossible to ascertain and that the Deposit constitutes a fair and reasonable amount of damages
under the circumstances is not a penalty, and/or (ii) invoke any other remedy expressly set out in this
Agreement or at law. In such an event, Seller shall be automatically released from the obligation to
sell the Property to Buyer and neither Seller nor Seller's representatives, agents, attorneys, successors,
or assigns shall be liable to Buyer for any damages of any kind as a result of Seller's failure to sell and
convey the Property.
12.2. Liquidated Damages. The Parties acknowledge that the payment of such liquidated damages is
not intended as a forfeiture or penalty, but is intended to constitute liquidated damages to
Seller. Buyer agrees that the retention of the Deposit by Seller represents a reasonable
estimation as of the Effective Date of Seller’s damages in the event of Buyer’s default. Buyer
hereby waives the rights and benefits of any law, rule, regulation, or order now or hereafter
existing that would allow Buyer to claim a refund of the Deposit as unearned earned money, a
penalty, or for any another reason. If a court determines that Seller is not entitled to retain the
Deposit as a result of Buyer’s default hereunder, Seller shall be entitled to seek any and all
damages provided by law. Notwithstanding anything to the contrary contained above, the
limitation of remedies set forth in this Section 12 shall not apply to any obligation of Buyer
hereunder to (i) indemnify, defend and hold Seller harmless or (ii) pay Seller’s costs and
expenses, including without limitation attorney fees pursuant to the terms of this Agreement.
Notwithstanding the foregoing, if Buyer interferes with or makes any attempt to interfere with
Seller receiving or retaining, as the case may be, the liquidated damages provided for in Section
12.1, including without limitation, giving any notice or instructions to Closing Agent not to
deliver the Deposit to Seller, Seller shall have the right to elect to recover the greater of Seller's
actual damages or the Deposit by giving written notice to Buyer and Seller shall have all other
rights and remedies against Buyer provided at law and in equity.
12.3. Seller's Default. If Seller is in default of one or more of Seller’s material obligations under this
Agreement, then Purchaser shall give notice to Seller (with a copy to the Closing Agent) specifying
the nature of the default. Seller shall have five (5) business days after receiving such notice within
which to cure the default. In the event Seller shall fail to cure such default, Buyer’s shall, as its sole
and exclusive remedy, be entitled to declare this Agreement to be null and void and demand and
receive the return of the Deposit whereupon, neither party shall have any further rights, duties or
obligations hereunder except as otherwise provided herein.
12.4. Seller's Right To Terminate. If Seller is unable or unwilling to perform as required by this
Agreement for any of the reasons set forth in this Section 12.4, inclusive, or if the Property is no
longer available for sale for any reason, then this Agreement may be terminated upon Seller's written
notice to Buyer. In such an event, Buyer shall be entitled to the return of the Deposit, pursuant to
Section 5.4, as Buyer's sole and exclusive remedy at law and/or equity, whereupon, neither party shall
have any further rights, duties or obligations hereunder except as otherwise provided herein. In no
event shall Buyer have the right to seek or obtain specific performance or enforcement of this
Agreement. Seller may terminate this Agreement for any of the following reasons:
12.4.1. If, after taking into account the Seller Expenses, Seller Closing Costs, and any other amounts
deducted from the proceeds of the sale of the Property as reflected on the HUD-1 settlement
statement, the net proceeds to Seller are less than zero.
12.4.2. Seller is unable or unwilling to provide insurable title whether or not pursuant to Section 8.3.
12.4.3. Seller is unable to provide any of the deliveries set forth in Section 9.7.1.
12.4.4. If Buyer’s Lender requires Seller to take any action with respect to the Property whether
pursuant to Section 13.3.8.2. Sample
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12.4.5. Any reason, provided that if Seller exercises its right to terminate under this Section 12.4.5, in
addition to returning the Deposit to Buyer, Seller shall pay a termination fee of Twenty-Five
Dollars ($25.00).
12.5. Waiver of Specific Performance Remedy. Buyer specifically waives any and all right to (i) file or
record any lis pendens or any other lien or encumbrance against the Property; (ii) specific
performance or other equitable relief; or (iii) consequential or punitive damages. Buyer agrees that
the Property is not unique and that in the event of Seller's default or material breach of the Agreement,
Buyer can be adequately and fairly compensated solely by receiving a return of the Deposit.
12.6. LIMITATION OF LIABILITY. BUYER AGREES THAT SELLER SHALL NOT BE LIABLE
TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE, OR ANY OTHER
SUCH EXPENSE OR COST ARISING FROM OR RELATED TO THIS AGREEMENT OR A
BREACH OF THIS AGREEMENT. To the extent Buyer has not waived its claims under this
Agreement, any remaining claims arising from or relating to this Agreement must be brought within
one (1) year from the Closing Date.
12.7. Waiver. Any consent by any Party to, or waiver of, a breach by the other, whether express or
implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach.
12.8. No Further Obligation. Upon any termination of this Agreement pursuant to any right of a party to
terminate set in this Section 12, (a) the Deposit shall be paid over to the Party entitled to the same, (b)
all documents deposited by Buyer and Seller into escrow shall be returned by the Closing Agent to the
Party entitled to the same, and (c) all copies of any Inspection documents shall be provided to Seller,
whereupon the parties will have no continuing liability to each other except as to any provision that
survives the termination of this Agreement pursuant to Section 16.1.
13. DISCLOSURES.
13.1. POST-FORECLOSURE TRANSACTION. BUYER ACKNOWLEDGES THAT THE
PURCHASE OF THE PROPERTY RESULTS FROM A TRANSFER MADE BY A SELLER WHO
ACQUIRED THE PROPERTY AT A SALE CONDUCTED PURSUANT TO FORECLOSURE,
DEED IN LIEU THEREOF, TRUSTEE'S SALE PURSUANT TO A POWER OF SALE UNDER A
DEED OF TRUST, POWER OF SALE UNDER A MORTGAGE, SHERIFF'S SALE OR SIMILAR
ACTION. THEREFORE, SELLER HAS NOT MADE ANY DISCLOSURES REGARDING THE
PROPERTY, AND AS A RESULT, ANY RIGHTS BUYER MAY HAVE IN CONNECTION WITH
ANY REQUIRED DISCLOSURE STATEMENTS UNDER STATE LAW MAY NOT BE
AVAILABLE, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TERMINATE THIS
AGREEMENT. TO THE EXTENT PERMITTED BY LAW, BUYER EXPRESSLY WAIVES THE
RIGHT TO RECEIVE ANY SUCH DISCLOSURE STATEMENT REGARDING THE
CONDITION OF THE PROPERTY. FURTHER, SELLER IS NOT FAMILIAR WITH THE
CONDITION OF THE PROPERTY, AND BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS
NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION. ANY SUCH REPORTS FURNISHED BY
SELLER, SELLER'S REPRESENTATIVES OR SELLER'S AGENTS IN CONNECTION WITH
THIS AGREEMENT SHALL BE FOR INFORMATIONAL PURPOSES ONLY, SHOULD NOT
BE RELIED UPON BY BUYER OR ANY REPRESENTATIVE OF BUYER AND ARE NOT Sample
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MADE PART OF THIS AGREEMENT, AND SELLER MAKES NO REPRESENTATION OR
WARRANTIES ABOUT THEIR ACCURACY OR COMPLETENESS.
13.2. NO REPRESENTATIONS OR WARRANTIES: PROPERTY SOLD “AS IS, WHERE IS”.
BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS BEING SOLD AS IS,
WHERE IS AND WITH ALL FAULTS. BUYER ACKNOWLEDGES AND AGREES THAT
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICIALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS, WARRANTITES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF,
AS TO, CONCERNING OR WITH RESPECT TO (A) ANY LATENT DEFECTS IN THE
PROPERTY OR ANY APPURTENANT SYSTEMS, INCLUDING BUT NOT LIMITED TO
PLUMBING, HEATING, AIR CONDITIONING AND ELECTRICAL SYSTEMS, FIXTURES,
APPLIANCES, ROOF, SEWERS, SEPTIC, SOIL CONDITIONS, GEOLOGICAL CONDITIONS,
FOUNDATION, STRUCTURAL INTEGRITY, ENVIRONMENTAL CONDITION, POOL OR
RELATED EQUIPMENT, (B) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY,
THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH BUYER MAY CONDUCT THEREON, (C) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (D) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, (E) THE MANNER OR QUALITY OF
THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY,
(F) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (G) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON
THE PROPERTY OF HAZARDOUS MATERIALS OR SUBSTANCES. BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO
INSPECT THE PROPERTY, BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF
THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY
SELLER AND ACCEPTS THE PROPERTY AND WAIVES ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY
HAZARDOUS MATERIALS ON THE PROPERTY. SELLER IS NOT LIABLE OR BOUND IN
ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS OTHER THAN AS SET
FORTH IN THIS AGREEMENT, AND IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. BUYER AGREES THAT IN CONTRACTING
TO BUY THE PROPERTY, BUYER HAS NOT RELIED TO BUYER'S DETRIMENT UPON ANY
REPRESENTATION OR WARRANTY MADE BY SELLER, ANY PARENT, SUBSIDIARY OR
AFFILIATE OF SELLER, OR ANY OF SELLER'S OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ASSET MANAGERS, BROKERS OR REPRESENTATIVES. IT IS UNDERSTOOD
AND AGREED THAT THE SELECTED BID/SELECTED OFFER AMOUNT REFLECTS THAT
ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO
THE FOREGOING. Sample
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13.3. Other Disclosures.
13.3.1. Assessments. If the Property is subject to a special assessment lien imposed by a public body payable
in installments which continue beyond Closing, Buyer shall be responsible for and pay all amounts
which become due after Closing.
13.3.2. Building and Zoning Codes. Buyer should consult the local jurisdiction for information on building
and zoning codes or information about transportation beltways and/or planned or anticipated land use
within proximity of the Property. Seller makes no representations or warranties regarding compliance
or conformity with any building or zoning codes, laws, rules, or regulations.
13.3.3. Condominium/PUD/Homeowner's Association. If the Property is in a common interest community,
Planned Urban Development or condominium community or regime (“Community”), unless
otherwise required by law, Buyer acknowledges that Buyer, at Buyer's expense, was and is
responsible for obtaining and reviewing the declaration of covenants, conditions, restrictions and/or
bylaws and other documentation (the “Community Documents”) regarding the Community. Buyer
acknowledges that, prior to Buyer's execution of this Agreement, Buyer has reviewed the Community
Documents to the fullest extent Buyer deems necessary and, upon execution of this Agreement, Buyer
is deemed to have accepted the Community Documents of the Community. Buyer further
acknowledges that it is Buyer's responsibility for obtaining any approval of new owners or occupants,
which may be required by the Community.
13.3.4. Lead-Based Paint.
13.3.4.1. Disclosure. Buyer understands and acknowledges that the Property may have been built prior
to 1978 and lead-based paint and/or lead-based paint hazards may be present on the Property.
Seller has provided to Buyer, and Buyer acknowledges receipt of, the pamphlet “Protect Your
Family from Lead in Your Home”, attached hereto and incorporated herein by this reference.
In addition, Seller and Buyer have executed as an Addendum to this Agreement the
“Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards,” in
accordance with applicable law.
13.3.4.2. Acknowledgment and Waiver. Buyer acknowledges that Buyer has been provided the
opportunity to undertake studies, inspections or investigations of the Property as Buyer
deemed or deems necessary to evaluate the presence of lead-based paint and/or lead-based
paint hazards on the Property. To the extent that Buyer has waived or otherwise declined the
opportunity to undertake such studies, inspections and investigations, Buyer has knowingly
and voluntarily done so and Seller shall have no responsibility or liability with respect to any
presence or occurrence of lead-based paint or lead-based paint hazards. Seller does not make
any representation or warranty, express or implied, as to the presence of lead-based paint
and/or lead-based paint hazards on the Property.
13.3.5. Megan's Law / Registered Sex Offender Disclosure. Buyer and Seller agree that the Listing and
Selling Brokers and their agents are not responsible for obtaining or disclosing any information
contained in the Sex Offender Registry for the state in which the Property is located. This
information may be obtained from the local sheriff's department, various internet web sites available
to the public or other appropriate law enforcement agencies. If Buyer wants further information, the
Seller, Listing Broker, Co-Listing Sales Agent, Selling Broker and their affiliated licensees
recommend that Buyer obtain information from these sources during the Inspection Period, if any.
13.3.6. Mold. MOLD IS NATURALLY OCCURRING AND MAY CAUSE HEALTH RISKS OR
DAMAGE TO PROPERTY. IF BUYER IS CONCERNED OR DESIRES ADDITIONAL
INFORMATION REGARDING MOLD, BUYER SHOULD CONTACT AN APPROPRIATE
PROFESSIONAL. Real property (including, but not limited to, a basement) is or may be affected by Sample
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water or moisture damage, toxic mold and/or other environmental hazards or conditions. Buyer
acknowledges and agrees that as a consequence of possible water damage and/or excessive moisture,
the Property may be or has been irrevocably contaminated with mildew, mold, and/or other
microscopic organisms. Buyer is advised that: (a) exposure to certain species of mold may pose
serious health risks; (b) individuals with immune system deficiencies, infants, children, the elderly,
individuals with allergies or respiratory problems; and (c) pets are particularly susceptible to
experiencing adverse health effects from mold exposure. Buyer acknowledges and agrees that Seller
has advised Buyer to make Buyer's own evaluation of the Property and to have the Property
thoroughly inspected and that all areas contaminated with mold, and/or other environmental hazards
or conditions, should be properly and thoroughly remediated. Additionally, Buyer acknowledges and
agrees that habitation of the Property without complete remediation may subject the inhabitants to
potentially serious health risks and/or bodily injury. See Section 13.3.7 regarding remediation.
13.3.7. Remediation. BUYER ACKNOWLEDGES THAT IS THE SOLE RESPONSIBILITY OF BUYER
TO CONDUCT ANY REMEDIATION ON THE PROPERTY. BUYER IS ELECTING TO
PURCHASE THE PROPERTY FROM SELLER IN AN AS IS, WHERE IS CONDITION WITH
FULL KNOWLEDGE OF THE POTENTIAL CONDITION OF THE PROPERTY, THE
POTENTIALLY SERIOUS HEALTH RISKS, AND THE POTENTIAL LIABILITY THAT BUYER
COULD INCUR AS THE OWNER OF THE PROPERTY FOR CLAIMS, LOSSES, AND
DAMAGES ARISING OUT OF ANY TOXIC MOLD CONTAMINATION, AND/OR OTHER
ENVIRONMENTAL HAZARDS OR CONDITIONS ON THE PROPERTY.
13.3.8. Permits and Repairs.
13.3.8.1. Buyer's Responsibility. If the Property is located in a jurisdiction that requires a certificate of
occupancy, smoke detector certification, septic certification or any similar certification or
permit or any form of improvement or repair to the Property (collectively, “Permits and
Repairs”), Buyer acknowledges and agrees that Buyer shall be responsible for obtaining any
and all of the Permits and Repairs at Buyer's sole cost and expense, including but not limited
to any certificate of use or other certification required by the ordinance and hereby waives any
right to require Seller to obtain the same.
13.3.8.2. “AS IS, WHERE IS”. BUYER IS PURCHASING THE PROPERTY IN ITS CURRENT
“AS IS, WHERE IS” CONDITION. ANY REPAIRS TO THE PROPERTY IDENTIFIED
BY BUYER OR WHICH MAY BE REQUIRED BY ANY LENDING INSTITUTION TO
WHICH BUYER MAY HAVE APPLIED ARE THE RESPONSIBILITY OF BUYER.
Seller shall have no obligation whatsoever to make any repairs to the Property. Should any
lender or any insuring entity or agency require that certain repairs to the Property be made or
that certain other conditions be met, Seller, at Seller's sole option, may comply with such
requirement or terminate the Agreement. Furthermore, should any FHA Conditional
Commitment or VA Certificate of Reasonable Value vary from the agreed upon Selected Bid
Amount/Offer Amount (as the same may be adjusted pursuant to this Agreement) of the
Property, then Seller, at Seller's sole option, may terminate the Agreement.
13.3.9. Property Tax Disclosure Summary. Buyer should not rely on the Seller's or any previous owner's
reported property taxes as the amount of property taxes that the Buyer may be obligated to pay in the
year subsequent to purchase of the Property. A change of ownership, use, or property improvements
may trigger reassessment or revaluation of the Property that could result in higher Property taxes. If
Buyer has any questions concerning valuation, Buyer is encouraged to contact the local property
appraiser's office for information.
13.3.10. Radon. Radon is a naturally occurring radioactive gas that when accumulated in a building in
sufficient quantities may present health risks to persons who are exposed to it over time. Levels of Sample
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radon that exceed federal and state guidelines may have been found in buildings in the state where the
Property is located. Additional information regarding radon or radon testing may be obtained from
the state or local health department or department of environment. Buyer confirms, acknowledges
and agrees that Seller has provided Buyer with the opportunity to conduct Inspections related to the
presence of radon on or about the Property. See Section 13.3.7 regarding remediation.
13.3.11. Square Footage. Buyer acknowledges that the square footage of the Property has not been measured
by Seller, Seller's representatives or agents (including the square footage of the lot and home) and the
square footage quoted on any marketing materials, advertisements, brochures, MLS data, or any other
publicly available source of information is deemed approximate and not guaranteed. Buyer further
acknowledges that Buyer has not relied upon any such information and that such information does not
constitute a representation and/or warranty of Seller. Buyer is buying the Property AS IS, WHERE IS
and acknowledges Buyer's responsibility to perform all due diligence and investigation regarding
Buyer's purchase of the Property, including the measurement of or confirmation of square footage of
the Property.
13.4. Receipt of Disclosures. Buyer understands and acknowledges that any information provided by or on
behalf of Seller with respect to the Property was obtained from a variety of sources and that Seller,
Seller's representatives and agents have not made any independent investigation or verification of
such information and make no representations as to the accuracy or completeness of any such
information concerning the Property. Buyer agrees to accept delivery of this Agreement, any
correspondence or communications related to this Agreement and any materials, reports,
correspondence, communications and other information contemplated by this Agreement by
electronic means, such as email or internet. Any such electronic delivery will not affect the validity or
enforceability of this Agreement or Buyer's duties and obligations to perform under this Agreement.
14. INDEMNIFICATION.
In consideration of the sale of the Property to the Buyer, Buyer hereby releases Seller, the record
owner of the Property, and their respective officers, directors, employees, shareholders, servicers,
representatives, contractors, asset managers, agents, appraisers, attorneys, tenants, brokers, successors
and assigns from all claims, demands, causes of action, judgments, losses, liabilities, costs and
expenses (including, without limitation, attorney’s fees whether suit is instituted or not), whether
known or unknown, liquidated or contingent (collectively, “Claims”) asserted against or incurred by
Purchaser by reason of this transaction, the information contained in this Agreement or in any
documents relating to the Inspections. Additionally, Buyer releases Seller from any and all Claims
(whether known or unknown, and whether contingent or liquidated) arising from or related to (a) any
defects, errors or omissions in the design or construction of the Property, whether the same are a result
of negligence or otherwise; or (b) other conditions (including environmental conditions) affecting the
Property, whether the same are a result of negligence or otherwise. Buyer shall defend, indemnify
and hold harmless Seller from and against any and all Claims asserted against or incurred by Seller,
the record owner of the Property, and their respective officers, directors, employees, shareholders,
servicers, representatives, contractors, asset managers, agents, appraisers, attorneys, tenants, brokers,
successors or assigns of every kind and nature that may be sustained by or made against Seller, the
record owner of the Property, and their respective officers, directors, employees, shareholders,
servicers, representatives, contractors, asset managers, agents, appraisers, attorneys, tenants, brokers,
successors or assigns, resulting from, arising out of or in connection with:
(a) Any covenant of Buyer contained in this Agreement, its exhibits, schedules, addenda or
amendments;
(b) The inspections or repairs made by Buyer or Buyer's agents, employees, contractors,
successors or assigns; Sample
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(c) The imposition of any fine or penalty imposed by any municipal or governmental entity
resulting from Buyer's failure to timely obtain any necessary certificate of occupancy or to
comply with equivalent ordinances, laws and regulations;
(d) Claims for amounts due and owed by Seller for taxes, homeowner association dues or
assessment or any other items prorated at closing in accordance with Section 10, including
any penalty or interest and other charges, arising from the proration of such amounts for
which Buyer received a credit at closing in accordance with Section 10; and
(e) Any and all actions concerning security deposits, and for any eviction or unlawful detainer or
other litigation arising out of the tenancy, occupancy or lease of the Property, including any
Claims relating to the Act after the Closing Date.
Notwithstanding any term or condition to the contrary in this Agreement, the Parties acknowledge,
agree and confirm that this Section 14 shall survive Closing or the termination of this Agreement.
15. ADDITIONAL REAL ESTATE PROVISIONS.
15.1. Risk of Loss. In the event Seller actually becomes aware that a material portion of the Property
becomes damaged or destroyed during the period of time between the Effective Date and prior to
Closing, Seller shall give Buyer written notice thereof; provided, however, that Seller shall have no
notice obligation relating to any damage or destruction caused by Buyer’s inspections or to the extent
that such disclosures are not required by law. Buyer shall have the option, exercisable within ten (10)
days after receipt of such notice, to either: (a) terminate this Agreement by written notice to Seller and
Closing Agent, in which event Closing Agent shall return the Deposit to Buyer and neither party shall
have any further rights or obligations to the other; or (b) consummate this Agreement in accordance
with its terms, with no reduction in the Purchase Price hereunder. In any event, Seller shall not be
deemed in default under this Agreement as a result of such damage or destruction. Buyer shall be
deemed to have waived Buyer's right to terminate this Agreement if Buyer does not notify Seller in
writing of Buyer's election to terminate this Agreement within ten (10) days after receipt of Seller's
written notice of material damage. Notwithstanding the foregoing, any termination notice given by
Buyer under this Section shall be rendered ineffective if, within five (5) days after Seller's receipt of
such written notice, Seller delivers to Buyer Seller's written agreement to repair at Seller's sole cost
and expense all such damage. In such event, the Closing shall be deemed automatically extended to
the third (3rd) business day following Seller's completions of such repair. Buyer shall not be entitled
to any insurance proceeds or obtain any rights with respect to any claims Seller may have with regard
to insurance maintained by Seller with respect to the Property.
15.2. Personal Property. Items of personal property, including but not limited to window coverings,
appliances, manufactured homes, mobile homes, alarm systems, vehicles, spas, antennas, satellite
dishes and garage door openers, now or hereafter located on the Property are not included in this sale
or the Purchase Price. Any personal property at or on the Property may be subject to claims by third
parties and, therefore, may be removed from the Property prior to the Closing Date. Seller makes no
representation or warranty as to the condition of any personal property, title thereto, or whether any
personal property is encumbered by any liens. Buyer assumes responsibility for any personal property
remaining on the Property at the time of Closing.
15.3. Eminent Domain. In the event that Seller's interest in the Property, or any part thereof constituting
any of the improvements on the Property or at least twenty-five percent (25%) of the unimproved
portion of the Property, shall have been taken by eminent domain or shall be in the process of being
taken on or before the Closing Date, either Party may terminate this Agreement and the Deposit shall
be returned to Buyer pursuant to Section 5.4 and neither Party shall have any further rights or
liabilities hereunder except as provided in Section16.1 of this Agreement. Sample
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15.4. Keys. Buyer understands that if Seller is not in possession of keys, including but not limited to, house
keys, other building keys, mailbox keys, recreation area keys, gate cards, or automatic garage remote
controls, then the cost of obtaining the same will be the responsibility of Buyer. Buyer also
understands that if the Property includes an alarm system, Seller may not be able to provide the access
code and/or key and that Buyer will be responsible for any costs associated with the alarm and/or
changing the access code or obtaining keys. Further, Buyer understands and agrees to change or re-
key all locks to the Property, at Buyer's expense, after Closing.
15.5. Insurance Policies. Seller's insurance policies on the subject property of the closing are not
transferable, and will not be prorated at Closing.
16. GENERAL CONTRACT PROVISIONS.
16.1. Survival. Delivery of the deed to the Property to Buyer by Seller shall be deemed to be full
performance and discharge of all of Seller's obligations under this Agreement. Notwithstanding
anything to the contrary contained in this Agreement, the provisions of Sections 11.1 and 14 of this
Agreement, as well as any other provision which contemplates performance or observance by Buyer
subsequent to any termination or expiration of this Agreement, shall survive the Closing, funding and
the delivery of the deed and/or termination of this Agreement by any Party and continue in full force
and effect.
16.2. Assignment of Agreement. Buyer shall not assign this Agreement without the express written
consent of Seller, which may be withheld in Seller’s sole discretion. Seller may assign this Agreement
at Seller's sole discretion without prior notice to, or consent of, Buyer. In no event shall any
assignment by Seller relieve Buyer from Buyer's obligations under this Agreement. If Buyer attempts
to or actually assigns or delegates the Agreement without obtaining Seller's prior written consent, then
this Agreement may be deemed null and void at Seller's discretion. In the event that Seller chooses to
nullify this Agreement for this reason, then Buyer shall be deemed in default hereunder and Seller
shall be entitled to retain the Deposit pursuant to Sections 12.1 and 12.2 hereof.
16.3. Entire Agreement. This Agreement, including the disclosure of information on lead based paint
and/or lead based paint hazards or other disclosure forms or notices required by law, constitutes the
entire agreement between Buyer and Seller concerning the subject matter hereof and supersedes all
previous communications, understandings, representations, warranties, covenants or agreements,
either written or oral and there are no oral or other written agreements between Buyer and Seller. NO
ORAL PROMISES, REPRESENTATIONS (EXPRESSED OR IMPLIED), WARRANTIES
OR AGREEMENTS MADE BY SELLER AND/OR BROKERS OR ANY PERSON ACTING
ON BEHALF OF SELLER SHALL BE DEEMED VALID OR BINDING UPON SELLER
UNLESS EXPRESSLY INCLUDED IN THIS AGREEMENT. All negotiations are merged into
this Agreement. Seller is not obligated by any other written or verbal statements made by Seller,
Seller's representatives, or any real estate licensee.
16.4. Modification. No provision, term or clause of this Agreement shall be revised, modified, amended or
waived except by an instrument in writing signed by Buyer and Seller.
16.5. Rights of Others. This Agreement does not create any rights, claims or benefits inuring to any
person or entity, other than Seller's successors and/or assigns, that is not a party to this Agreement,
nor does it create or establish any third party beneficiary to this Agreement.
16.6. Counterparts. This Agreement may be executed in any number of counterparts and each such
counterpart shall be deemed to be an original, but all of which, when taken together, shall constitute
one agreement.
16.7. Electronic Signatures. This Agreement may be executed by providing an electronic signature under
the terms of the Electronic Signatures Act, 15 U.S.C. § 7001 et. seq., and may not be denied legal Sample
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effect solely because it is in electronic form or permits the completion of the business transaction
referenced herein electronically instead of in person.
16.8. Headings. The titles to the sections and headings of various paragraphs of this Agreement are placed
for convenience of reference only and in case of conflict, the text of this Agreement, rather than such
titles or headings shall control.
16.9. Gender. Unless the context otherwise requires, singular nouns and pronouns, when used herein, shall
be deemed to include the plural of such nouns or pronouns and pronouns of one gender shall be
deemed to include the equivalent pronoun of the other gender.
16.10. Force Majeure. Except as provided in Section 15.1, no Party shall be responsible for delays or
failure of performance resulting from acts of God, riots, acts of war, epidemics, power failures,
earthquakes or other disasters, providing such delay or failure of performance could not have been
prevented by reasonable precautions and cannot reasonably be circumvented by such Party through
use of alternate sources, workaround plans or other means.
16.11. Attorney Review. The Parties acknowledge that each Party has had the opportunity to consult with
its respective legal counsel regarding this Agreement and that accordingly the terms of this
Agreement are not to be construed against any Party because that Party drafted this Agreement or
construed in favor of any Party because that Party failed to understand the legal effect of the
provisions of this Agreement.
16.12. Notices.
16.12.1. Communications Regarding Real Estate Transaction. Buyer and Seller acknowledge that many
communications and notices in real estate transactions are of a time sensitive nature and that the
failure to be available to receive such notices and communications can have adverse, legal, business
and financial consequences. Buyer and Seller agree to remain reasonably available to receive
communications from each other.
16.12.2. Notices Regarding this Agreement. Communications and notices among the Parties regarding the
terms of this Agreement shall be in writing, signed by the Party giving the notice, and shall be deemed
given: (a) upon receipt if delivered personally or if mailed by certified mail, return receipt requested
and postage prepaid; or (b) at noon on the business day after dispatch if sent by a nationally
recognized overnight courier via overnight delivery; except for notices to Seller, which may only be
delivered to Seller electronically, either via e-mail to a
or via fax at , with a copy to Listing Broker and the Co-Listing Sales
Agent. All other notices shall be delivered to the address and e-mail addresses as shown on Exhibit
A (or at such other address a party may specify by like notice).
16.13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of each of the Parties hereto.
16.14. Severability. If for any reason any portion or paragraph of this Agreement shall be declared void and
unenforceable by any court of law or equity it shall only affect such particular portion or paragraph of
this Agreement and the balance of this Agreement shall remain in full force and effect and shall be
binding upon the Parties hereto.
16.15. Attorneys' Fees. Each Party shall pay the fees and costs of its own counsel. In the event a legal
proceeding is commenced to enforce this Agreement, the prevailing Party shall be entitled to
reasonable attorneys' fees and costs from the other Party.
16.16. Cumulative Rights. The rights, options, election and remedies contained in this Agreement shall be
cumulative; and no one such rights, options, elections and remedies shall be construed as excluding
any other of them or any right or remedy allowed or provided by law. Sample
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16.17. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the
jurisdiction in which the Property is located.
16.18. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES
HERETO HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT WHICH
EITHER OR BOTH OF THEM MAY HAVE TO RECEIVE A TRIAL BY JURY WITH RESPECT
TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH MAY ARISE OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF.
16.19. Legal Holidays, Weekends. If an action is called for under this Agreement or a deadline exists on or
by a date which is on a weekend or an official holiday of the United States Federal Reserve System
Banks and Branches, then that action must be complete on or before the date which is one (1) business
day prior to the original scheduled date.
16.20. Effective Date. The “Effective Date” of this Agreement shall be the date this Agreement is executed
by the Seller, as indicated below on Seller's signature block.
16.21. Exhibits, Addenda. Any exhibits or addenda attached to this Agreement are incorporated into this
Agreement by reference. In the event of any conflict or inconsistency between any exhibits or
addenda and this Agreement, the exhibits or addenda shall govern. In the event any addenda or
exhibit required by applicable law is not attached to this Agreement or otherwise is not provided as
required by applicable law, Seller shall have the option to terminate this Agreement pursuant to
Section 12.3.
17. ESCROW AGREEMENT
17.1. Deposit. Closing Agent agrees to deposit the Deposit in a segregated bank account until Closing or
sooner termination of this Agreement and shall pay over or apply the Deposit in accordance with the
terms of this Agreement. At Closing, the Deposit shall be paid by Closing Agent to Seller. If for any
reason the Closing does not occur and either party gives written instructions to Closing Agent
demanding payment of the Deposit in accordance with the terms of this Agreement, the Closing
Agent shall release the funds in accordance with and pursuant to the written instructions. In the event
of a dispute between any of the parties hereto sufficient in the sole discretion of Closing Agent to
justify its doing so, Closing Agent shall be entitled to tender unto the registry or custody of any court
of competent jurisdiction all money or property in its hands held under the terms of this Agreement,
together with such legal pleading as it deems appropriate, and thereupon be discharged.
17.2. Closing Agent. Seller and Buyer covenant and agree that in performing any of its duties under this
Agreement, Closing Agent shall not be liable for any loss, costs or damage which it may incur as a
result of serving as escrow agent hereunder, except for any loss, costs or damage arising out of its
willful default or gross negligence.
Sample
Purchase and Sale Agreement Buyer's Initials: \byer_init\ / \co_byer_init\ Page 27 ©2017 Altisource Portfolio Solutions S.A. All rights reserved
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year
first above written.
SELLER:
By: \asset_manager_sign\
Name:
Title: \asset_manager_title\
Date: \asset_manager_sign_date\
BUYER:
By: \buyer_sign\
Name
Date: \buyer_sign_date\
By: \co_buyer_sign\
Name:
Date: \co_buyer_sign_date\
LISTING BROKER:
By:\listing_agent_sign\
Name
Title:
Date: \listing_agent_sign_date\
Agent License #: \listing_agent_license\
Corp License # for
:\listing_agent_corp_license\
Telephone Number:
E-mail Address:
SELLING BROKER or BUYER'S AGENT (if any):
\buyer_agent_comp_name\
By: \buyer_agent_sign\
Name:
Title:
Date: \buyer_agent_sign_date\
Agent License # &
state:
\buyer_agent_state_license\
Corp License #: \buyer_agent_corp_license\
Telephone Number
E-mail Address:
CO-LISTING SALES AGENT (if any):
By:\listing_agent_sign\
Name:
Title:
Date: \listing_agent_sign_date\
Agent License #: \ \
Corp License # :
Telephone Number:
CLOSING AGENT:
(Solely for the purposes of Section 17)
By: _____________________________
Name: ___________________________
Title: ____________________________ Sample
Purchase and Sale Agreement Buyer's Initials: \byer_init\ / \co_byer_init\ Page 28 ©2017 Altisource Portfolio Solutions S.A. All rights reserved
EXHIBIT “A” - Contact Information
SELLER:
Altisource®
as authorized agent for
RE:
1000 Abernathy Parkway
Building 400 Northpark
Suite 200
Atlanta, GA 30328
Contact Name:
Fax:
e-mail:
BUYER:
Buyer 1 – Name:
Address:
City, State, Zip:
Phone (day):
Phone (c):
Fax:
e-mail:
Buyer 2 – Name:
Address:
City, State, Zip:
Phone (day):
Phone (c):
Fax:
e-mail:
LISTING BROKER:
Agent's Name and License #
\listing_agent_license\
Address 1: \listing_agent_addr_one\
Address 2: \listing_agent_addr_two\
City, State, Zip: \listing_agent_cy_st_zip\
Phone (o): \listing_agent_phone_no\
Phone (c): Fax: e-mail:
TITLE PROVIDER:
Address 1:
Address 2:
City, State, Zip:
Contact Name:
Phone (o):
Phone (c):
Fax:
e-mail:
CO-LISTING SALES AGENT (if any):
Agent's Name and License # :
Brokerage:
Address:
City, State, Zip:
Phone (o):
Phone (c): Fax: e-mail:
Sample
Purchase and Sale Agreement Buyer's Initials: \byer_init\ / \co_byer_init\ Page 29 ©2017 Altisource Portfolio Solutions S.A. All rights reserved
SELLING BROKER or BUYER'S AGENT (if any):
Agent's Name and License #
\buyer_agent_name_license\
Address 1: Address 2: City, State, Zip: Phone (o): Phone (c): Fax: e-mail:
CLOSING AGENT:
\cla_cmp_name\
Contact Name: \cla_cnct_name\
Contact Address: \cla_addr_one\
\cla_addr_two\
\cla_cy_st_zip\
Phone (o): \cla_office_phone_no\
Phone (c): \cla_cell_phone_no\
Fax: \cla_fax\
e-mail: \cla_email_id\
Sample